State v. Holmes , 2016 Ohio 4608 ( 2016 )

[Cite as State v. Holmes, 2016-Ohio-4608.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-150290
TRIAL NO. B-1100512
Plaintiff-Appellee, :
vs. : O P I N I O N.
NORMAN HOLMES, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Appeal Dismissed
Date of Judgment Entry on Appeal: June 29, 2016
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Norman Holmes, pro se.
OHIO FIRST DISTRICT COURT OF APPEALS
CUNNINGHAM, Judge.
{¶1} Defendant-appellant Norman Holmes appeals from the Hamilton County
Common Pleas Court’s judgment overruling his postconviction “Motion for Re-
Sentencing Based on Void Judgment.” We dismiss the appeal for lack of jurisdiction.
{¶2} Holmes was convicted in 2011 of robbery. We affirmed his conviction in
his direct appeal. State v. Holmes, 1st Dist. Hamilton No. C-110457 (May 23, 2012),
appeal not accepted, 132 Ohio St.3d 1535, 2012-Ohio-4381, 974 N.E.2d 1211. And the
common pleas court overruled postconviction motions filed by Holmes in 2012, 2013,
and 2015. In this appeal from the overruling of his 2015 “Motion for Re-Sentencing
Based on Void Judgment,” he advances two assignments of error.
No Appellate Jurisdiction over Matters Not Raised Below
{¶3} We do not reach the merits of the challenge presented in the first
assignment of error to the common pleas court’s denial of relief on the ground that the
trial court failed to comply with R.C. 2929.19(B)(6) in ordering that Holmes pay the
costs of his prosecution. Nor do we reach the merits of the second assignment of error,
challenging the denial of relief based on his trial counsel’s alleged ineffectiveness
concerning the matter of costs.
{¶4} This court has jurisdiction to review only the judgment from which
Holmes appeals. In that judgment, the common pleas court overruled Holmes’s 2015
motion seeking resentencing on the ground that the trial court, when sentencing him
in 2011, had violated R.C. 2947.23(A)(1), because the court did not, as the statute then
required, notify him that he could be ordered to perform community service if he did
not pay the costs of his prosecution. In overruling that motion, the court did not rule
upon, because Holmes had not asserted in his motion, either a challenge to the trial
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OHIO FIRST DISTRICT COURT OF APPEALS
court’s imposition of court costs or a challenge to his trial counsel’s effectiveness
concerning costs. See State v. Gipson, 1st Dist. Hamilton Nos. C-960867 and C-
960881, 1997 Ohio App. LEXIS 4404 (Sept. 26, 1997).
{¶5} Nor may this court review these claims under its jurisdiction to correct a
void judgment. See State ex rel. Cruzado v. Zaleski, 111 Ohio St.3d 353, 2006-Ohio-
5795, 856 N.E.2d 263, ¶ 18-19. Neither the alleged error in imposing costs nor trial
counsel’s alleged ineffectiveness concerning costs, even if demonstrated, would have
rendered Holmes’s conviction void. See State v. Wurzelbacher, 1st Dist. Hamilton No.
C-130011, 2013-Ohio-4009, ¶ 8; State v. Grant, 1st Dist. Hamilton No. C-120695,
2013-Ohio-3421, ¶ 9-16 (holding that a judgment of conviction is void only to the
extent that a sentence is unauthorized by statute or does not include a statutorily
mandated term or if the trial court lacks subject-matter jurisdiction or the authority to
act).
No Appellate Jurisdiction to Review Overruling of Motion for
Resentencing
{¶6} Nor do we have jurisdiction to review Holmes’s challenge in his first
assignment of error to the denial of the relief sought in his motion for resentencing. A
court of appeals has only “such jurisdiction as may be provided by law to review and
affirm, modify, or reverse judgments or final orders of the courts of record inferior to
the court of appeals within the district.” Article IV, Section 3(B)(2), Ohio Constitution.
{¶7} Not a direct appeal. Holmes filed his motion four years after his
conviction and three years after we had affirmed his conviction on direct appeal. The
motion is thus plainly not reviewable under the jurisdiction conferred upon an appeals
court by R.C. 2953.02 or 2953.08 to review a judgment of conviction entered in a
criminal case.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶8} Not reviewable as a denial of postconviction relief. The
motion did not designate a statute or rule under which the relief sought might be
afforded. The common pleas court was, therefore, free to “recast” the motion “into
whatever category necessary to identify and establish the criteria by which the motion
should be judged.” State v. Schlee, 117 Ohio St.3d 153, 2008-Ohio-545, 882 N.E.2d
431, ¶ 12 and syllabus.
{¶9} R.C. 2953.21 et seq., governing the proceedings upon a petition for
postconviction relief, provide “the exclusive remedy by which a person may bring a
collateral challenge to the validity of a conviction or sentence in a criminal case.” R.C.
2953.21(J). But to prevail on a postconviction claim, the petitioner must demonstrate
an infringement of his rights in the proceedings resulting in his conviction that
rendered the conviction void or voidable under the state or federal constitution. See
R.C. 2953.21(A)(1); State v. Powell, 90 Ohio App.3d 260, 264, 629 N.E.2d 13 (1st
Dist.1993). Holmes’s motion was not reviewable by the common pleas court under the
postconviction statutes, because it sought relief based upon a deprivation of a
statutory, rather than a constitutional, right. In turn, the entry overruling the motion
is not reviewable under this court’s jurisdiction under R.C. 2953.23(B) to review an
order awarding or denying postconviction relief.
{¶10} Not reviewable as a “final order.” Nor is the entry overruling
the motion reviewable under this court’s jurisdiction under R.C. 2505.03(A), to review
and affirm, modify, or reverse a “final order, judgment or decree.” A “final order”
includes an order that “affects a substantial right” in “an action,” when that order
either “in effect determines the action and prevents a judgment,” R.C. 2505.02(B)(1),
or is “made in a special proceeding,” that is, in “an action or proceeding that is
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OHIO FIRST DISTRICT COURT OF APPEALS
specially created by statute and that prior to 1853 was not denoted as an action at law
or a suit in equity.” R.C. 2505.02(B)(2) and (A)(2). A “final order” also includes an
order that “grants or denies a provisional remedy,” that is, a remedy in “a proceeding
ancillary to an action,” when that order “in effect determines the action with respect to
the provisional remedy and prevents a judgment in the action in favor of the appealing
party with respect to the provisional remedy,” and when “[t]he appealing party would
not be afforded a meaningful or effective remedy by an appeal following final judgment
as to all proceedings, issues, claims, and parties in the action.” R.C. 2505.02(A)(3) and
(B)(4).
{¶11} For purposes of determining whether an order is “final,” a “substantial
right” is “a right that the United States Constitution, the Ohio Constitution, a statute,
the common law, or a rule of procedure entitles a person to enforce or protect.” R.C.
2505.02(A)(1). In his motion, Holmes sought resentencing for the trial court’s failure
to provide the statutorily mandated community-service-for-nonpayment-of-costs
notification. Thus, the common pleas court’s order overruling the motion implicated a
substantial right.
{¶12} Holmes’s motion was not, however, filed in any action or any proceeding
ancillary to an action, pending before the common pleas court. Although the common
pleas court was free to “recast” Holmes’s motion to identify the standard by which it
should be decided, Schlee, 117 Ohio St.3d 153, 2008-Ohio-545, 882 N.E.2d 431, at ¶ 12
and syllabus, the motion was not reviewable by the common pleas court as a Crim.R.
32.1 motion to withdraw a guilty plea, because Holmes was convicted following a jury
trial. Nor was the motion reviewable by the common pleas court as a Crim.R. 33
motion for a new trial, when it sought resentencing, rather than a new trial. Because
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OHIO FIRST DISTRICT COURT OF APPEALS
the motion was not filed in a pending proceeding, the common pleas court’s order
overruling the motion cannot be said to have effectively determined or prevented a
judgment in any proceeding. See R.C. 2505.02(B)(1) and (B)(4)(a). Nor can that order
be said to have been “made” in any “special” statutory proceeding. See R.C. 2505.02
(B)(2).
{¶13} Not reviewable as a void judgment. Finally, the matter was not
reviewable by the common pleas court, nor is it reviewable by this court, under a
court’s jurisdiction to correct a void judgment. See Cruzado, 111 Ohio St.3d 353, 2006-
Ohio-5795, 856 N.E.2d 263, at ¶ 18-19. The trial court’s failure to provide community-
service-for-nonpayment-of-costs notification would not have rendered Holmes’s
sentence void. See Wurzelbacher, 1st Dist. Hamilton No. C-130011, 2013-Ohio-4009,
at ¶ 11.
Appeal Dismissed
{¶14} We, therefore, hold that we are without jurisdiction to review the
common pleas court’s entry overruling Holmes’s “Motion for Re-Sentencing Based on
Void Judgment.” Accordingly, we dismiss this appeal.
Appeal dismissed.
FISCHER, P.J., and STAUTBERG, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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